Defense Federal Acquisition Regulation Supplement: Transfer and Adoption of Military Animals (DFARS Case 2020-D021), 25606-25609 [2023-08644]
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25606
Federal Register / Vol. 88, No. 81 / Thursday, April 27, 2023 / Proposed Rules
‘‘The following item(s) [Insert list provided
by plant clearance officer] require
demilitarization, mutilation, or destruction
by the Purchaser. Additional instructions are
provided in accordance with Defense
Demilitarization Manual, DoDM 4160.28–M,
edition in effect as of the date of this sales
contract. A Government representative will
certify and verify demilitarization of items.
Prepare demilitarization certificates in
accordance with DoDM 4160.28, Volume 2,
section 4.5, DEMIL Certificate (see figure 2,
Example DEMIL Certificate).’’
(iii) Removal and title transfer:
‘‘Property requiring demilitarization shall
not be removed, and title shall not pass to the
Purchaser, until demilitarization has been
accomplished and verified by a Government
representative.’’
(iv) Assumption of cost incident to
demilitarization:
‘‘The Purchaser agrees to assume all costs
incident to the demilitarization and to restore
the working area to its present condition after
removing the demilitarized property.’’
(v) Failure to demilitarize:
‘‘If the Purchaser fails to demilitarize,
mutilate, or destroy the property as specified
in the sales contract, the Contractor may,
upon giving 10 days written notice from to
the Purchaser—
(A) Repossess, demilitarize, and return the
property to the Purchaser, in which case the
Purchaser hereby agrees to pay to the
Contractor, prior to the return of the
property, all costs incurred by the Contractor
in repossessing, demilitarizing, and returning
the property;
(B) Repossess, demilitarize, and resell the
property, and charge the defaulting Purchaser
with all costs incurred by the Contractor. The
Contractor shall deduct these costs from the
purchase price and refund the balance of the
purchase price, if any, to the Purchaser. In
the event the costs exceed the purchase price,
the defaulting Purchaser hereby agrees to pay
these costs to the Contractor; or
(C) Repossess and resell the property under
similar terms and conditions, and charge the
defaulting Purchaser with all costs incurred
by the Contractor. The Contractor shall
deduct these costs from the original purchase
price and refund the balance of the purchase
price, if any, to the defaulting Purchaser.
Should the excess costs to the Contractor
exceed the purchase price, the defaulting
Purchaser hereby agrees to pay these costs to
the Contractor.’’
(l) Restrictions on purchase or retention of
Contractor inventory. The Contractor may not
knowingly sell the inventory to any person
or that person’s agent, employee, or
household member if that person—
(1) Is a civilian employee of DoD or the
U.S. Coast Guard;
(2) Is a member of the armed forces of the
United States, including the U.S. Coast
Guard; or
(3) Has any functional or supervisory
responsibilities for or within DoD’s property
disposal, disposition, or plant clearance
programs or for the disposal of contractor
inventory.
(m) Proceeds from sales of surplus
property. Unless otherwise provided in the
contract, the proceeds of any sale, purchase,
or retention shall be—
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(1) Forwarded to the Contracting Officer;
(2) Credited to the Government as part of
the settlement agreement pursuant to the
termination of the contract;
(3) Credited to the price or cost of the
contract; or
(4) Applied as otherwise directed by the
Contracting Officer.
(End of clause)
[FR Doc. 2023–08645 Filed 4–26–23; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 212, 237, and 252
[Docket DARS–2023–0016]
RIN 0750–AL07
Defense Federal Acquisition
Regulation Supplement: Transfer and
Adoption of Military Animals (DFARS
Case 2020–D021)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2020.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before June
26, 2023, to be considered in the
formation of the final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2020–D021,
using any of the following methods:
Æ Federal eRulemaking Portal:
https://regulations.gov. Search for
‘‘DFARS Case 2020–D021.’’ Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
‘‘DFARS Case 2020–D021’’ on any
attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2020–D021 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT:
Kimberly R. Ziegler, telephone 703–
901–3176.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend DFARS
part 237, Service Contracting, to
implement section 372(f) of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2020 (Pub. L. 116–92).
Section 372(f), as implemented at 10
U.S.C. 2387 (previously 10 U.S.C.
2410r), requires DoD contracting officers
to include a clause in contracts when
contract working dogs are provided
under the contract. 10 U.S.C. 2387
requires the transfer of a contract
working dog, after the service life of the
dog has terminated, to the United States
Air Force, 341st Training Squadron,
for—
a. Veterinary screening and care; and
b. Reclassification as a military
animal and placement for adoption in
accordance with 10 U.S.C. 2583.
The service life of a contract working
dog may be terminated if a contracting
officer determines that—
a. The final contractual obligation of
the dog preceding the transfer is with
DoD; and
b. The dog cannot be used by another
department or agency of the Federal
Government due to age, injury, or
performance.
DoD determines the status of military
animals and whether a military animal
is suitable for transfer or adoption under
the statutory direction provided in 10
U.S.C. 2583, Military animals: transfer
and adoption. It also provides the
priority for adoptions or transfer,
standards for veterinary care, and
transportation of retiring military
working dogs. The 341st Training
Squadron is responsible for the
performance of these duties under the
DoD Military Working Dog Program.
Section 372 amends 10 U.S.C. 2583;
however, those amendments are outside
of the scope of this proposed rule.
II. Discussion and Analysis
The proposed rule creates a new
subpart under DFARS part 237, Service
Contracting, to address the requirements
in 10 U.S.C. 2387. DoD generally
contracts for contract working dogs as a
service performed by a contracted
handler and dog as a unit or team, most
often for security, law enforcement, or
other specialized circumstances. These
contract working dogs are under the
control of an experienced, contracted
handler at all times and are not paired
with an active duty military member or
DoD civilian handler. Based upon the
manner in which DoD contracts for the
contract working dogs and the
definition of a contract working dog
provided in 10 U.S.C. 2387(c), the new
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Federal Register / Vol. 88, No. 81 / Thursday, April 27, 2023 / Proposed Rules
direction is implemented in DFARS part
237.
A contract working dog would be
transferred to the Government only
when the conditions at 10 U.S.C.
2387(b) are met. In the event that a
requiring activity submits a request
based upon both conditions being met,
a contracting officer may determine that
the service life of a contract working dog
has terminated. The dog will then be
transferred to the 341st Training
Squadron for reclassification as a
military animal and placement for
adoption in accordance with 10 U.S.C.
2583.
The proposed rule prescribes a new
contract clause at 252.237–70XX,
Transfer and Adoption of Military
Animals, for use in solicitations and
contracts for contract working dog
services, to include solicitations and
contracts using Federal Acquisition
Regulation (FAR) part 12 procedures
and for commercial products and
commercial services. The new clause
provides notification to offerors and
contractors that under certain
circumstances, the contract working dog
is required to be transferred to the 341st
Training Squadron for care and
reclassification as a military animal and
placement for adoption in accordance
with 10 U.S.C. 2583.
lotter on DSK11XQN23PROD with PROPOSALS1
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Services and Commercial Products,
Including Commercially Available Offthe-Shelf (COTS) Items
This proposed rule implements 10
U.S.C. 2387 as amended by section
372(f) of the NDAA for FY 2020. The
statute requires DoD to add a contract
clause to contracts for the provision of
contract working dog services. As a
result, the proposed rule adds one new
contract clause at 252.237–70XX,
Transfer and Adoption of Military
Animals, for use in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for commercial products and
commercial services, that require the
services of a contract working dog.
Accordingly, DoD intends to apply the
proposed rule to acquisitions below the
SAT and to the acquisition of
commercial services.
A. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
41 U.S.C. 1905 governs the
applicability of laws to contracts or
subcontracts in amounts not greater
than the SAT. It is intended to limit the
applicability of laws to such contracts or
subcontracts. 41 U.S.C. 1905 provides
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that if a provision of law contains
criminal or civil penalties, or if the
Federal Acquisition Regulatory Council
makes a determination that it is not in
the best interest of the Federal
Government to exempt contracts or
subcontracts at or below the SAT, the
law will apply to them. The Principal
Director, Defense Pricing and
Contracting (DPC), is the appropriate
authority to make comparable
determinations for regulations to be
published in the DFARS, which is part
of the Federal Acquisition Regulation
system of regulations. DoD intends to
make that determination to apply this
proposed rule at or below the SAT.
B. Applicability to Contracts for the
Acquisition of Commercial Services and
Commercial Products, Including COTS
Items
10 U.S.C. 3452 (previously 10 U.S.C.
2375) governs the applicability of laws
to DoD contracts and subcontracts for
the acquisition of commercial products,
including COTS items, and commercial
services from provisions of law enacted
after October 13, 1994, and is intended
to limit the applicability of laws to
contracts and subcontracts for the
acquisition of commercial services and
commercial products including COTS
items. 10 U.S.C. 3452 provides that if a
provision of law contains criminal or
civil penalties, or if the Under Secretary
of Defense for Acquisition and
Sustainment (USD(A&S)) makes a
written determination that it is not in
the best interest of the Federal
Government to exempt commercial
product and commercial service
contracts, the provision of law will
apply to contracts for the acquisition of
commercial products and commercial
services. Due to delegations of authority
from USD(A&S), the Principal Director,
DPC is the appropriate authority to
make this determination. DoD intends to
make that determination to apply this
proposed rule to the acquisition of
commercial services if otherwise
applicable.
C. Determination
DoD is proposing to apply the
requirements of 10 U.S.C. 2387 to
contracts at or below the SAT, since the
requirements of the proposed clause at
252.237–70XX would apply to contracts
that are normally of a value at or below
the SAT and conducted under FAR part
12 procedures. The new requirements
will apply to contracts for the
acquisition of commercial services,
because the services provided under
these contracts are considered
commercial in nature. The requirements
do not apply to COTS items.
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It is not in the best interest of the
Federal Government to exempt
application of this proposed rule to
actions at or below the SAT or for
commercial services. An exception for
contracts below the SAT and those for
commercial services would exclude the
majority of the contracts intended to be
covered by the law, thereby
undermining the overarching public
policy purpose of the law.
IV. Expected Impact of the Rule
DoD does not expect the proposed
rule to have a significant impact on the
public, because the need for a
contracting officer to make a
determination that a contract working
dog has reached the end of its service
life will be rare. Such acquisitions are
few in number, and service contractors
who provide contract working dogs and
handlers are expected to replace dogs
and handlers who are unable to perform
to DoD standards. A contracting officer’s
representative would be responsible for
monitoring contract performance and
coordinating any replacement dog and
handler requirements.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VI. Regulatory Flexibility Act
DoD does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., because the proposed rule will
apply to a limited number of service
providers. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows:
DoD is proposing to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement 10
U.S.C. 2387 (previously 10 U.S.C.
2410r), as amended by section 372(f) of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2020 (Pub.
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L. 116–92). Under 10 U.S.C. 2387, DoD
contracting officers are required to
include a clause in contracts for contract
working dog services.
The objective of the rule is to
implement the statutory requirements
for terminating the service life of a
contract working dog, when certain
circumstances apply, and transferring
the animal to the Department of the Air
Force, 341st Training Squadron. The
legal basis of the rule is 10 U.S.C. 2387,
as amended by section 372(f) of the
NDAA for FY 2020.
This proposed rule will apply to small
entities providing contract working dog
and handler services to DoD. The
proposed clause is prescribed for use in
solicitations and contracts for such
services, including those conducted
under FAR part 12 procedures for the
acquisition of commercial products and
commercial services.
Research conducted in the Contract
Opportunities section of SAM.gov
indicates that contract working dog and
handler services are generally procured
under North American Industry
Classification System codes and product
and service codes that provide for
certain physical security and law
enforcement services. Data obtained
from the Federal Procurement Data
System (FPDS) for FY 2019, 2020, and
2021 indicate that DoD awards an
average of 227 contract actions annually
for these physical security and law
enforcement services, which may
include a requirement for a contract
working dog and handler. Of the
estimated 227 awards, an average of
approximately 72 awards are made
annually to an estimated 52 unique
small entities. Neither FPDS nor
SAM.gov provide data for the number of
awards that are specific to the contract
working dog and handler services;
however, this analysis assumes all of the
estimated awards and unique small
entities may be impacted.
The proposed rule does not impose
any new reporting, recordkeeping, or
compliance requirements.
The proposed rule does not duplicate,
overlap, or conflict with any other
Federal rules.
There are no practical alternatives
that will accomplish the objectives of
the statute.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by the rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
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U.S.C. 610 (DFARS Case 2020–D021), in
correspondence.
VII. Paperwork Reduction Act
This proposed rule does not contain
any information collection requirements
that require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Part 212, 237,
and 252
Government Procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 212, 237, and
252 are proposed to be amended as
follows:
■ 1. The authority citation for parts 212,
237, and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES
2. Amend section 212.301 by adding
paragraph (f)(xiv)(E) to read as follows:
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial products and commercial
services.
*
*
*
*
*
(f) * * *
(xiv) * * *
(E) Use the clause at 252.237–70XX,
Transfer and Adoption of Military
Animals, as prescribed in 237.7X04 to
comply with 10 U.S.C. 2387.
PART 237—SERVICE CONTRACTING
3. Add subpart 237.7X to read as
follows:
■
SUBPART 237.7X—TRANSFER AND
ADOPTION OF MILITARY ANIMALS
237.7X00 Scope of subpart.
237.7X01 Definition.
237.7X02 Policy.
237.7X03 Procedures.
237.7X04 Contract clause.
237.7X01
Definition.
As used in this subpart—
Contract working dog means a dog
that—
(1) Performs a service for DoD
pursuant to a contract; and
(2) Is trained and kenneled by an
entity that provides such a dog pursuant
to such a contract.
237.7X02
Policy.
(a) In accordance with 10 U.S.C. 2387,
DoD will transfer a contract working dog
to the Department of the Air Force,
341st Training Squadron, for veterinary
screening and care after the service life
of the dog has terminated.
(b) The service life of a contract
working dog may be terminated if—
(1) The final contractual obligation of
the dog preceding transfer is with DoD;
and
(2) The dog cannot be used by another
department or agency of the Federal
Government due to age, injury, or
performance.
(c) A contract working dog that has
reached the end of its service life will
be transferred for care and
reclassification as a military animal and
placement for adoption in accordance
with 10 U.S.C. 2583.
237.7X03
Procedures.
Contracting officers, at the request of
the requiring activity, may issue a
determination that the service life of a
contract working dog has terminated if
the conditions in 237.7X02(b) have been
documented by the requiring activity.
237.7X04
Contract clause.
Use the clause at 252.237–70XX,
Transfer and Adoption of Military
Animals, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial products and
commercial services, that require the
use of a contract working dog.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Add section 252.237–70XX to read
as follows:
■
SUBPART 237.7X—TRANSFER AND
ADOPTION OF MILITARY ANIMALS
252.237–70XX Transfer and Adoption of
Military Animals.
237.7X00
As prescribed in 237.7X04, use the
following clause:
Scope of subpart.
This subpart implements 10 U.S.C.
2387, which requires, under certain
circumstances, the transfer of a contract
working dog to the Department of Air
Force, 341st Training Squadron, for
veterinary screening and care in
accordance with 10 U.S.C. 2583.
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Transfer and Adoption of Military
Animals (Date)
(a) Definition. As used in this clause—
Contract working dog means a dog that—
(1) Performs a service for DoD pursuant to
a contract; and
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Federal Register / Vol. 88, No. 81 / Thursday, April 27, 2023 / Proposed Rules
(2) Is trained and kenneled by an entity
that provides such a dog pursuant to such a
contract.
(b) In accordance with 10 U.S.C. 2387, a
contract working dog, after the service life of
the dog has terminated, is required to be
transferred to the Department of the Air
Force, 341st Training Squadron, for
veterinary screening and care and for
reclassification as a military animal and
placement for adoption in accordance with
10 U.S.C. 2583.
(c) The service life of a contract working
dog may be terminated if the Contracting
Officer determines that—
(1) The final contractual obligation of the
dog preceding transfer is with DoD; and
(2) The dog cannot be used by another
department or agency of the Federal
Government due to age, injury, or
performance.
(d) If the Contracting Officer determines
that the service life of a contract working dog
has terminated, the dog will be transferred to
the 341st Training Squadron for care and
reclassification as a military animal and
placement for adoption in accordance with
10 U.S.C. 2583.
(End of clause)
[FR Doc. 2023–08644 Filed 4–26–23; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
[Docket DARS–2023–0018]
RIN 0750–AL33
Defense Federal Acquisition
Regulation Supplement: Restriction on
Certain Metal Products (DFARS Case
2021–D015)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2021 that provides restrictions on
the acquisition of certain covered
materials from North Korea, the People’s
Republic of China, Russia, and Iran.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before June
26, 2023, to be considered in the
formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2021–D015,
using any of the following methods:
Æ Federal eRulemaking Portal:
https://www.regulations.gov. Search for
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SUMMARY:
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‘‘DFARS Case 2021–D015.’’ Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
your name, company name (if any), and
‘‘DFARS Case 2021–D015’’ on any
attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2021–D015 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT:
Kimberly Bass, telephone 703–717–
3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS
to implement section 844 of the
National Defense Authorization Act for
Fiscal Year 2021 (Pub. L. 116–283).
Section 844 amends 10 U.S.C. 2533c
(redesignated 10 U.S.C. 4872) and
removes from the restriction ‘‘material
melted’’ and replaces it with ‘‘material
mined, refined, separated, melted’’. In
addition, the reference to ‘‘tungsten’’ is
removed and replaced with ‘‘covered
material’’ in the exception for
commercially available-off-the-shelf
(COTS) items to the restriction of 50
percent or more by weight. The new
restriction in the proposed rule will go
into effect on January 1, 2026.
II. Discussion and Analysis
A. Restriction
The proposed rule would revise the
restriction on the acquisition of covered
materials melted or produced in the
Democratic People’s Republic of North
Korea, the People’s Republic of China,
the Russian Federation, or the Islamic
Republic of Iran at DFARS 225.7018–
2(a), to include a reference to the end
date of the current restriction effective
through December 31, 2025, at
paragraph (a)(1). The revision also states
that the new restriction at paragraph
(a)(2) for the covered materials becomes
effective on January 1, 2026. The term
‘‘covered materials,’’ already defined at
DFARS 225.7018–1, means samariumcobalt magnets, neodymium-iron-boron
magnets, tantalum metals and alloys,
tungsten metal powder, and tungsten
heavy alloy or any finished or semifinished component containing tungsten
heavy alloy.
DFARS 225.7018–2(b)(2) is added to
reflect the restriction effective on
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January 1, 2026, for samarium-cobalt
magnets to convey that the new
restriction will include the entire
supply chain from mining or production
of a cobalt and samarium ore or
feedstock, including recycled material,
through production of finished magnets.
Accordingly, paragraph (b)(1) was
revised to reflect the end date of the
current restriction for samarium-cobalt
magnets and neodymium-iron-boron
magnets on December 31, 2025. In
addition, revisions at DFARS 225.7018–
2(b)(4) include the new restriction for
neodymium-iron-boron magnets
covering the entire supply chain
effective on January 1, 2026.
Paragraph (c)(1) adds the end date of
the current restrictions for tantalum
metals and alloys, effective through
December 31, 2025. DFARS 225.7018–
2(c)(2) implements the new restriction
for the production of tantalum metals
and alloys effective on January 1, 2026.
DFARS 225.7018–2(d)(2) implements
the new restriction for the production of
tungsten metal powder, tungsten heavy
alloy, or any finished or semi-finished
component containing tungsten heavy
alloy in effect on January 1, 2026.
Paragraph (d)(1) adds the end date of the
current restrictions for tungsten metal
powder, tungsten heavy alloy, or any
finished or semi-finished component
containing tungsten heavy alloy,
effective through December 31, 2025.
B. Exceptions
The proposed rule at 225.7018–
3(c)(1)(i) revises the COTS items
exception to the restriction of 50 percent
or more by weight to include all covered
material and removes the individual
exception for tungsten. Subsequently,
the restriction was revised at DFARS
225.7018–3(c)(1)(i)(A) to add the end
date of the current restriction of 50
percent or more tungsten by weight,
effective through December 31, 2025. In
addition, the new COTS items exception
is added at (c)(1)(i)(B) to implement the
new restriction for 50 percent or more
covered material by weight effective on
January 1, 2026. The proposed rule at
DFARS 225.7018–3(c)(1)(ii) revises the
current COTS items exception to reflect
the restriction effective through
December 31, 2025.
DFARS 225.7018–3(c)(1)(iii) is added
to implement the COTS items exception
for the new restriction on a covered
material that is a mill product such as
bar, billet, slab, wire, cube, sphere,
block, blank, plate, or sheet, that has not
been incorporated into an end item,
subsystem, assembly, or component, to
be effective on January 1, 2026.
E:\FR\FM\27APP1.SGM
27APP1
]]>Agencies
[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Proposed Rules]
[Pages 25606-25609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08644]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 212, 237, and 252
[Docket DARS-2023-0016]
RIN 0750-AL07
Defense Federal Acquisition Regulation Supplement: Transfer and
Adoption of Military Animals (DFARS Case 2020-D021)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act for Fiscal Year 2020.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 26, 2023, to be considered in
the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2020-D021, using
any of the following methods:
[cir] Federal eRulemaking Portal: https://regulations.gov. Search
for ``DFARS Case 2020-D021.'' Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2020-
D021'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2020-D021 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Kimberly R. Ziegler, telephone 703-
901-3176.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend DFARS part 237, Service Contracting, to
implement section 372(f) of the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2020 (Pub. L. 116-92). Section 372(f), as
implemented at 10 U.S.C. 2387 (previously 10 U.S.C. 2410r), requires
DoD contracting officers to include a clause in contracts when contract
working dogs are provided under the contract. 10 U.S.C. 2387 requires
the transfer of a contract working dog, after the service life of the
dog has terminated, to the United States Air Force, 341st Training
Squadron, for--
a. Veterinary screening and care; and
b. Reclassification as a military animal and placement for adoption
in accordance with 10 U.S.C. 2583.
The service life of a contract working dog may be terminated if a
contracting officer determines that--
a. The final contractual obligation of the dog preceding the
transfer is with DoD; and
b. The dog cannot be used by another department or agency of the
Federal Government due to age, injury, or performance.
DoD determines the status of military animals and whether a
military animal is suitable for transfer or adoption under the
statutory direction provided in 10 U.S.C. 2583, Military animals:
transfer and adoption. It also provides the priority for adoptions or
transfer, standards for veterinary care, and transportation of retiring
military working dogs. The 341st Training Squadron is responsible for
the performance of these duties under the DoD Military Working Dog
Program. Section 372 amends 10 U.S.C. 2583; however, those amendments
are outside of the scope of this proposed rule.
II. Discussion and Analysis
The proposed rule creates a new subpart under DFARS part 237,
Service Contracting, to address the requirements in 10 U.S.C. 2387. DoD
generally contracts for contract working dogs as a service performed by
a contracted handler and dog as a unit or team, most often for
security, law enforcement, or other specialized circumstances. These
contract working dogs are under the control of an experienced,
contracted handler at all times and are not paired with an active duty
military member or DoD civilian handler. Based upon the manner in which
DoD contracts for the contract working dogs and the definition of a
contract working dog provided in 10 U.S.C. 2387(c), the new
[[Page 25607]]
direction is implemented in DFARS part 237.
A contract working dog would be transferred to the Government only
when the conditions at 10 U.S.C. 2387(b) are met. In the event that a
requiring activity submits a request based upon both conditions being
met, a contracting officer may determine that the service life of a
contract working dog has terminated. The dog will then be transferred
to the 341st Training Squadron for reclassification as a military
animal and placement for adoption in accordance with 10 U.S.C. 2583.
The proposed rule prescribes a new contract clause at 252.237-70XX,
Transfer and Adoption of Military Animals, for use in solicitations and
contracts for contract working dog services, to include solicitations
and contracts using Federal Acquisition Regulation (FAR) part 12
procedures and for commercial products and commercial services. The new
clause provides notification to offerors and contractors that under
certain circumstances, the contract working dog is required to be
transferred to the 341st Training Squadron for care and
reclassification as a military animal and placement for adoption in
accordance with 10 U.S.C. 2583.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Services and Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This proposed rule implements 10 U.S.C. 2387 as amended by section
372(f) of the NDAA for FY 2020. The statute requires DoD to add a
contract clause to contracts for the provision of contract working dog
services. As a result, the proposed rule adds one new contract clause
at 252.237-70XX, Transfer and Adoption of Military Animals, for use in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for commercial products and commercial
services, that require the services of a contract working dog.
Accordingly, DoD intends to apply the proposed rule to acquisitions
below the SAT and to the acquisition of commercial services.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 41
U.S.C. 1905 provides that if a provision of law contains criminal or
civil penalties, or if the Federal Acquisition Regulatory Council makes
a determination that it is not in the best interest of the Federal
Government to exempt contracts or subcontracts at or below the SAT, the
law will apply to them. The Principal Director, Defense Pricing and
Contracting (DPC), is the appropriate authority to make comparable
determinations for regulations to be published in the DFARS, which is
part of the Federal Acquisition Regulation system of regulations. DoD
intends to make that determination to apply this proposed rule at or
below the SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Services and Commercial Products, Including COTS Items
10 U.S.C. 3452 (previously 10 U.S.C. 2375) governs the
applicability of laws to DoD contracts and subcontracts for the
acquisition of commercial products, including COTS items, and
commercial services from provisions of law enacted after October 13,
1994, and is intended to limit the applicability of laws to contracts
and subcontracts for the acquisition of commercial services and
commercial products including COTS items. 10 U.S.C. 3452 provides that
if a provision of law contains criminal or civil penalties, or if the
Under Secretary of Defense for Acquisition and Sustainment (USD(A&S))
makes a written determination that it is not in the best interest of
the Federal Government to exempt commercial product and commercial
service contracts, the provision of law will apply to contracts for the
acquisition of commercial products and commercial services. Due to
delegations of authority from USD(A&S), the Principal Director, DPC is
the appropriate authority to make this determination. DoD intends to
make that determination to apply this proposed rule to the acquisition
of commercial services if otherwise applicable.
C. Determination
DoD is proposing to apply the requirements of 10 U.S.C. 2387 to
contracts at or below the SAT, since the requirements of the proposed
clause at 252.237-70XX would apply to contracts that are normally of a
value at or below the SAT and conducted under FAR part 12 procedures.
The new requirements will apply to contracts for the acquisition of
commercial services, because the services provided under these
contracts are considered commercial in nature. The requirements do not
apply to COTS items.
It is not in the best interest of the Federal Government to exempt
application of this proposed rule to actions at or below the SAT or for
commercial services. An exception for contracts below the SAT and those
for commercial services would exclude the majority of the contracts
intended to be covered by the law, thereby undermining the overarching
public policy purpose of the law.
IV. Expected Impact of the Rule
DoD does not expect the proposed rule to have a significant impact
on the public, because the need for a contracting officer to make a
determination that a contract working dog has reached the end of its
service life will be rare. Such acquisitions are few in number, and
service contractors who provide contract working dogs and handlers are
expected to replace dogs and handlers who are unable to perform to DoD
standards. A contracting officer's representative would be responsible
for monitoring contract performance and coordinating any replacement
dog and handler requirements.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the proposed rule will apply to a limited number of service
providers. However, an initial regulatory flexibility analysis has been
performed and is summarized as follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement 10 U.S.C. 2387 (previously
10 U.S.C. 2410r), as amended by section 372(f) of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub.
[[Page 25608]]
L. 116-92). Under 10 U.S.C. 2387, DoD contracting officers are required
to include a clause in contracts for contract working dog services.
The objective of the rule is to implement the statutory
requirements for terminating the service life of a contract working
dog, when certain circumstances apply, and transferring the animal to
the Department of the Air Force, 341st Training Squadron. The legal
basis of the rule is 10 U.S.C. 2387, as amended by section 372(f) of
the NDAA for FY 2020.
This proposed rule will apply to small entities providing contract
working dog and handler services to DoD. The proposed clause is
prescribed for use in solicitations and contracts for such services,
including those conducted under FAR part 12 procedures for the
acquisition of commercial products and commercial services.
Research conducted in the Contract Opportunities section of SAM.gov
indicates that contract working dog and handler services are generally
procured under North American Industry Classification System codes and
product and service codes that provide for certain physical security
and law enforcement services. Data obtained from the Federal
Procurement Data System (FPDS) for FY 2019, 2020, and 2021 indicate
that DoD awards an average of 227 contract actions annually for these
physical security and law enforcement services, which may include a
requirement for a contract working dog and handler. Of the estimated
227 awards, an average of approximately 72 awards are made annually to
an estimated 52 unique small entities. Neither FPDS nor SAM.gov provide
data for the number of awards that are specific to the contract working
dog and handler services; however, this analysis assumes all of the
estimated awards and unique small entities may be impacted.
The proposed rule does not impose any new reporting, recordkeeping,
or compliance requirements.
The proposed rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no practical alternatives that will accomplish the
objectives of the statute.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by the rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2020-D021), in
correspondence.
VII. Paperwork Reduction Act
This proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 212, 237, and 252
Government Procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 237, and 252 are proposed to be
amended as follows:
0
1. The authority citation for parts 212, 237, and 252 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
0
2. Amend section 212.301 by adding paragraph (f)(xiv)(E) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(f) * * *
(xiv) * * *
(E) Use the clause at 252.237-70XX, Transfer and Adoption of
Military Animals, as prescribed in 237.7X04 to comply with 10 U.S.C.
2387.
PART 237--SERVICE CONTRACTING
0
3. Add subpart 237.7X to read as follows:
SUBPART 237.7X--TRANSFER AND ADOPTION OF MILITARY ANIMALS
237.7X00 Scope of subpart.
237.7X01 Definition.
237.7X02 Policy.
237.7X03 Procedures.
237.7X04 Contract clause.
SUBPART 237.7X--TRANSFER AND ADOPTION OF MILITARY ANIMALS
237.7X00 Scope of subpart.
This subpart implements 10 U.S.C. 2387, which requires, under
certain circumstances, the transfer of a contract working dog to the
Department of Air Force, 341st Training Squadron, for veterinary
screening and care in accordance with 10 U.S.C. 2583.
237.7X01 Definition.
As used in this subpart--
Contract working dog means a dog that--
(1) Performs a service for DoD pursuant to a contract; and
(2) Is trained and kenneled by an entity that provides such a dog
pursuant to such a contract.
237.7X02 Policy.
(a) In accordance with 10 U.S.C. 2387, DoD will transfer a contract
working dog to the Department of the Air Force, 341st Training
Squadron, for veterinary screening and care after the service life of
the dog has terminated.
(b) The service life of a contract working dog may be terminated
if--
(1) The final contractual obligation of the dog preceding transfer
is with DoD; and
(2) The dog cannot be used by another department or agency of the
Federal Government due to age, injury, or performance.
(c) A contract working dog that has reached the end of its service
life will be transferred for care and reclassification as a military
animal and placement for adoption in accordance with 10 U.S.C. 2583.
237.7X03 Procedures.
Contracting officers, at the request of the requiring activity, may
issue a determination that the service life of a contract working dog
has terminated if the conditions in 237.7X02(b) have been documented by
the requiring activity.
237.7X04 Contract clause.
Use the clause at 252.237-70XX, Transfer and Adoption of Military
Animals, in solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial products and commercial services, that require the use of a
contract working dog.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add section 252.237-70XX to read as follows:
252.237-70XX Transfer and Adoption of Military Animals.
As prescribed in 237.7X04, use the following clause:
Transfer and Adoption of Military Animals (Date)
(a) Definition. As used in this clause--
Contract working dog means a dog that--
(1) Performs a service for DoD pursuant to a contract; and
[[Page 25609]]
(2) Is trained and kenneled by an entity that provides such a
dog pursuant to such a contract.
(b) In accordance with 10 U.S.C. 2387, a contract working dog,
after the service life of the dog has terminated, is required to be
transferred to the Department of the Air Force, 341st Training
Squadron, for veterinary screening and care and for reclassification
as a military animal and placement for adoption in accordance with
10 U.S.C. 2583.
(c) The service life of a contract working dog may be terminated
if the Contracting Officer determines that--
(1) The final contractual obligation of the dog preceding
transfer is with DoD; and
(2) The dog cannot be used by another department or agency of
the Federal Government due to age, injury, or performance.
(d) If the Contracting Officer determines that the service life
of a contract working dog has terminated, the dog will be
transferred to the 341st Training Squadron for care and
reclassification as a military animal and placement for adoption in
accordance with 10 U.S.C. 2583.
(End of clause)
[FR Doc. 2023-08644 Filed 4-26-23; 8:45 am]
BILLING CODE 5001-06-P
